Andhra HC (Pre-Telangana)
Fathima Bee (Died) By Lrs. vs S. Ibraheem Sab (Died) By Lrs. on 4 November, 2004
Equivalent citations: 2005(1)ALD823, 2005(1)ALT649
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The appellants in A.S. No. 72 of 1999, on the file of the IV Additional District Judge (Fast Track Court), Ananthapur, have filed this C.M.A., against the order, dated 27.1.2003, whereunder, the lower Appellate Court remanded the matter to the Trial Court, for fresh adjudication.
2. The relevant facts, in brief, are as under:
S. Ibrahim Sab, the deceased first respondent filed O.S. No. 9 of 1992 in the Court of Senior Civil Judge, Gooty, against the appellants, for declaration of title, in respect of Items 1 and 2, recovery of possession of the property in Item No. 1, and permanent injunction as regards the Item No. 2, of the suit schedule property. The suit was contested by the respondents herein. Through its judgment, dated 8.10.1999, the Trial Court decreed the suit. Aggrieved thereby, the appellants preferred A.S.No. 72 of 1999. During the pendency of the appeal, they came to know that by the time the suit was decreed, the sole plaintiff, i.e., the first respondent died on 22.12.1998, and his. legal representatives were not brought on record. They pleaded that the decree passed by the Trial Court on 8.10.1999, is a nullity.
3. They insisted that the appeal be allowed, the decree set aside and the matter be left at that. The lower Appellate Court, however, set-aside the decree and remanded the matter to the Trial Court so as to enable the legal representatives of the deceased sole plaintiff, first respondent herein, to come on record. The appellants challenge the same.
4. Sri Karanam Ramesh, learned Counsel for the appellants submits that with the death of the sole plaintiff in the suit and failure of his legal representatives to come on record, the suit abated, and the decree passed therein is a nullity. He submits that it was not competent for the lower Appellate Court to remand the matter to the Trial Court, to enable the respondents herein to reselect and revitalize the dead proceedings. He places reliance upon a judgment of this Court in Mohd. Safdar Shareef (died) per LRs. v. Mohammed Ali (died) per LR., (DB).
5. Sri K. Bathi Reddy, learned Counsel for the respondents, on the other hand, submits that the sole plaintiff was represented by General Power of Attorney, and the legal representatives were not aware, as to the existence of the proceedings, either before the Trial Court or the Appellate Court. He contends that though the decree may have been nullity, and deserves to be set-aside, the legal representatives cannot be deprived of their right to come on record, in accordance with the procedure prescribed under Order 22 C.P.C.
6. The deceased first respondent filed the suit through his General Power of Attorney, for the relief of declaration of title, recovery of possession and perpetual injunction. He died on 22.12.1998. This fact was not brought to the notice of the Trial Court, either by the G.P.A or by the appellants herein. Not being aware of this development, the Trial Court decreed the suit through its judgment, dated 8.10.1999. The appellants in turn, filed A.S.No. 72 of 1999 against the judgment and decree in the suit. Obviously because, they were not aware of the death of the first respondent, they impleaded him as the sole respondent in the appeal. They came to know about the death during the pendency of the appeal, and insisted that the decree be set aside as being nullity. The lower Appellate Court has chosen to remand the matter.
7. Order 22 C.P.C provides for various contingencies in the event of death of the parties to the suit. The consequences that ensue, on account of the death of the parties, depend much on the divisibility of the cause of action, be it in favour of the plaintiff or against the defendant. Rules 3 and 4 of Order 22 C.P.C., deal with the consequences of death of plaintiffs and the defendants respectively. The basic principle which cuts across the entire provisions of Order 22 C.P.C is that the death of plaintiff or defendant shall not cause the suit to abate, if the right to sue, survives (see Rule 1 C.P.C). When the right to sue survives, despite the death of any party, the Court is competent to proceed with the suit at the instance of, or against the surviving parties. Under Rule 3 of Order 22, the legal representatives of the deceased plaintiffs are entitled to come on record, and on their failure, the suit shall stand abated, insofar as the deceased plaintiff is concerned. Where the sole plaintiff dies, the suit abates as a whole, on such failure. The procedure for bringing the legal representatives of the defendants is prescribed under Rule 4.
8. Through Act 104 of 1976, Rules 4-A and 10-A are added. Under Rule 4-A, the Court is empowered to proceed with the suit, even where the legal representatives of deceased party are not brought on record, if, the other party makes an application in this regard. The Court is also empowered to appoint Administrator General or an officer of the Court or any other person to represent the estate of the deceased person. Rule 10-A imposes an obligation on the Counsel representing a party to a suit to inform the factum of death of such party to the Court, whenever he comes to know that fact. In Gangadhar v. Raj Kumar, AIR 1983 SC 1203, the Supreme Court explained the purport of this Rule. In a way, it can be said that the limitation for the other party to take steps to bring the legal representatives of the deceased party commences from the date of such intimation, or at least the delayed intimation may provide strong ground for condonation of delay in filing an application to set-aside the abatement.
9. Rule 9 of Order 22 C.P.C provides for the consequences of abatement or dismissal of the proceedings, in the event of death of parties. It reads as under:
9. Effect of abatement or dismissal :-(1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set-aside the abatement or dismissal; and if it is proved that he has prevented by any sufficient cause from continuing the suit, the Court shall set-aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under Sub-rule (2).
[Explanation.-Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]
10. A perusal of Sub-rule (2) C.P.C, discloses that the Court is empowered to set-aside the abatement or dismissal if the person claiming through the legal representatives of the deceased plaintiff are able to satisfy the Court that they were prevented by sufficient cause from continuing the suit. The rule applies at the stages of abatement or dismissal. While abatement takes place on the death of a party, followed by failure of the legal representatives to come on record, within the time stipulated under the Limitation Act, the suit stands dismissed, in a situation contemplated under Rule 8 of Order 22.
11. Before proceeding to consider the applicability of various Rules of Order 22 C.P.C., to the facts of the case, an important aspect needs to be dealt with. It is not in dispute that by the time the suit came to be decreed, the sole plaintiff died. Therefore, the decree is a nullity. If the deatn of the plaintiff was before the delivery of judgment, but after the hearing is concluded, the decree does not suffer from illegality, because such a situation is saved by Rule 6 of Order 22 C.P.C. That is not the case here. Where the defendants prefer an appeal against a decree in a suit, and bring to the notice of the Appellate Court the fact that the sole plaintiff died much before the conclusion of hearing of the suit, the Appellate Court has no alternative, but to set-aside the decree as a nullity. Such a declaration, however, does not put an end to the cause of action in the suit, as in the case of reversal or confirmation of a decree, by the Appellate Court, on merits. Once a decree passed in favour of a deceased plaintiff is set-aside as being a nullity, the suit would remain in the state of abatement. The fact that, such a decree was set-aside, does not by itself disentitle the parties to take necessary steps, contemplated under the various Rules of Order 22 C.P.C, if they are otherwise entitled to.
12. Learned Counsel for the appellants submits that in view of the judgment of the Division Bench of this Court in Mohd. Safdar Shareef (died) per LRs. v. Mohammed Ali (died) per LR (supra), it is impermissible for any Court to permit the legal representatives of the deceased plaintiff to come on record, once the decree passed in favour of such plaintiff is set aside as a nullity. In that case, much of the discussion was undertaken as to the survival of the cause of action, having regard to the nature of subject-matter of the case. It was held on facts, that the cause of action was inseparable, and death of one of the parties resulted in the abatement of the entire proceedings. It was held that it is not competent for a Court to permit the legal representatives of the deceased party, to come, or to be brought on record, once the decree, which was passed in favour of a dead person is set-aside. In taking such a view, a distinction was made between the proceedings arising out of appeal under Section 96 and second appeal under Section 100 C.P.C, on the one hand, and those under Letters Patent. The Bench did not express any doubt as to the permissibility of such a course of action, in relation to the appeals and second appeals. A reading of the following paragraphs would made it amply clear:
"Para-8: The learned Counsel for the respondents, relying upon a decision reported in Srinivasulu Chetti v. Guraviah (AIR 1927 Mad. 505), submitted that inasmuch as all the necessary parties are before the Court now, the legal representatives of the second defendant may be impleaded now and the matter may be remitted back to the learned Single Judge after setting aside the judgment under appeal. A similar view was taken in cases reported in Ram Sain v. Bhagirath, and Hayalappa v. Hyalappa, AIR 1972 Mysore 266. These are the cases which came up to the High Court by way of second appeal. The High Court allowed the second appeals and remitted the matter back to the Appellate Court in order to enable the appellant to implead the legal representatives and then dispose of the matter according to law.
Para-9: We may observe that we cannot follow the same procedure in this case. The letters patent appeal does not arise out of the second appeal, but, it is an appeal against the judgment of the learned Single Judge. Further, as we are of the view that since the suit itself has abated and the decree has become a nullity, there is no question of setting aside such a decree and enable the respondents to implead the legal representatives of the deceased respondent. No question of setting aside of the decree which is a nullity arises."
13. As contended by the learned Counsel for the respondents, it is debatable as to whether such a distinction can be maintained at all, as long as the proceedings, be it, the appeals under the provisions of C.P.C., or those under letters patent, arise out of the suits. Except stating that both the kinds of appeals are different; the Bench did not point out the basis for such a distinction, in the context of bringing the legal representatives on record, particularly when the proceedings under letters patent appeals are also governed by the provisions of C.P.C. Further, the purport of Rule 9 of Order 22 was not considered. However, since A.S. No. 72 of 1999 and the present C.M.A., are filed under the provisions of C.P.C, the ratio laid down in Mohd. Safdar Shareef (died) per LRs. v. Mohammed Ali (died) per LR. (supra), does not apply to the facts of this case.
14. In the instant case, it is evident that the sole plaintiff was represented by a G.P.A., and that his Counsel was not aware of the fact that the plaintiff died much before the arguments were commenced. The appellants herein were also not aware of that fact. They filed A.S.No. 72 of 1999 on merits, and did not raise any ground that the decree is a nullity, because it was passed in favour of a dead person. They came to know about the fact when their appeal was pending.
15. As observed in the preceding paragraphs, even after a decree passed in favour of a dead person is set-aside as being nullity, the entire proceedings cannot be said to have been terminated once for all. It would be permissible for the parties to take steps, contemplated under Order 22 C.P.C. The contention to the contrary cannot be accepted, for the reason that Order 22, and in particular Rule 9 thereof provides for taking of steps where a suit abates or is dismissed. While Rules 1 to 7 of Order 22 speak about abatement, on account of the death of the parties, Rule 8 speaks about abatement of a suit on the plaintiff being declared as insolvent, and dismissal thereof, at the instance of defendant, in case the assignee or assignor of the plaintiff neglects or refuses to continue it. Rule 9 provides for setting aside the abatement or dismissal, at the instance of the legal representative of the deceased plaintiff, or assignee or receiver of the plaintiff declared insolvent, as the case may be. This provision, in a way, can be said to be part or continuation of Rule 3. It was in this context, that the lower Appellate Court remanded the matter to the Trial Court to enable the legal representatives of the deceased 1st respondent to come on record. It is stated that such steps have since been taken.
16. The matter can be examined from another angle. The Limitation Act prescribes 90 days to bring the legal representatives of a deceased party, on record. In a given case, if the suit is disposed of in less than 90 days from the death of the sole plaintiff, not being aware of that fact, and such a decree is set aside as being a nullity, the legal representatives would be left with no remedy, if the contention of the appellants is accepted. A subsequent suit would be barred for no fault of them. The controversy assumes greater importance, in view of the fact that Section 5 of the Limitation Act applies to such proceedings. Therefore, it cannot be said that it is impermissible to bring the legal representatives of the deceased, sole plaintiff, on record, if the decree passed after the death of the plaintiff is set aside as nullity.
17. For the foregoing reasons, the CMA is dismissed. There shall be no order as to costs.